12 ways to help someone understand their rights under the Victorian Mental Health Act 2014
Mental Health and Wellbeing Commission
Promoting and protecting the rights of consumers, carers, families and supporters
While new legislation is due to take effect in mid-2023, the current Victorian Mental Health Act 2014 (the Act) guides how Victorian public mental health services should provide assessments and treatment – but the Act isn’t always easy for everybody to understand.
To help, the MHCC has launched its Rights and Principles resources to increase awareness of consumer, carer and family rights when receiving treatment from a public mental health service in Victoria. The series also aims to make it easier to understand the information of consumer and carer rights under the Act and improve access to information for consumers, carers, family and staff.
How can I use this information?
A series of social media posts and images, as well as a printable version have been created that you can use as a reference to understand, educate and communicate rights under the current Act. You can also use them to support someone who is seeking to gain a stronger understanding of their rights under the Act as well as what to expect when receiving treatment in the public mental health system.
What are 12 things people should know about their rights under the Act?
2. Responding to individual needs: Everyone should feel that they are seen as an individual during assessment and treatment at a Victorian mental health service. While providing care, services should ensure that:
3. Carers should be involved, recognised and respected: If a consumer provides their consent, carers should be involved in decisions about assessment, treatment and recovery, whenever this is possible. Carers should also have their role recognised, respected and supported. The Tandem Support and Referral Service can provide support, information and referral to family members, friends and carers of people living with mental health challenges.
4. Respecting and protecting the needs of children and young people: If a child or young person is receiving mental health services they should have their unique needs, wellbeing and safety recognised and protected. The Act states that the service should have their best interests recognised and promoted as a primary consideration, including receiving services separately from adults, whenever this is possible.
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5. Advance statements: Everyone can have a say about their treatment preferences with an advance statement. An advance statement is a written document where someone outlines their treatment preferences should they be placed on a compulsory treatment order. IMHA has created an advance statement guide and template to help with this.
6. Nominated persons: Everyone has the right to choose someone to be a nominated person. A nominated person can provide support to help represent a person’s views and preferences about their treatment and recovery, receive information about them from their treatment team, be one of the people consulted about treatment. The Victorian Department of Health has created a NP1 nominated persons form that outlines the different steps involved.
7. Compulsory assessment and treatment orders: The Act sets out rights when receiving compulsory mental health assessment and treatment. All Victorian mental health services must respect these rights and explain these rights to people during their assessment and treatment. They can also get help to understand their rights from the Independent Mental Health Advocacy service.
8. Receive a copy of the statement of rights: Reasonable steps must be taken to ensure a person is given a written statement of rights when a compulsory treatment order is made. They must also be given an oral explanation of the document and an opportunity to ask questions if there are parts they don’t understand. Their nominated person, carer or guardian should also receive a copy of the statement.
9. Disagree with a compulsory treatment order: If someone doesn’t agree with their compulsory treatment order, they have the right to: Talk to their treating team, receive support to talk to their treating team from the Independent Mental Health Advocacy (IMHA) service, seek a Second Psychiatric Opinion, seek legal advice, apply to the Mental Health Tribunal to cancel the order, ask the Mental Health Tribunal why it made its decision (this is called asking for a ‘statement of reasons’) or ask for another Tribunal hearing or appeal the decision at Victorian Civil and Administrative Tribunal (VCAT).
10. Taking temporary leave from hospital: While receiving compulsory mental health inpatient treatment, a person has the right to ask for temporary leave from hospital. This can include leave to receive medical treatment or for another purpose if it is considered appropriate. They can talk with their treating team about the reasons they want leave for themselves or someone they care for.
11. The right to communicate: When receiving compulsory assessment or treatment in hospital consumers have the right to communicate lawfully with any person they choose. There are some circumstances that an authorised psychiatrist can restrict this right if they believe it is necessary to protect someone’s health, safety and wellbeing or that of another person. But they can’t stop someone from communicating with a lawyer, an IMHA advocate, the Mental Health Tribunal, the Chief Psychiatrist, the Mental Health Complaints Commissioner, or a community visitor from the Office of the Public Advocate.
12. The right to make a complaint: If someone feels that their rights, or the rights of someone they care for haven’t been upheld while receiving mental health assessment or treatment, you can encourage them to make a complaint directly to the service or to contact the Mental Health Complaints Commissioner (MHCC).
What should I do if think these rights and principles haven’t been upheld?
Firstly, it’s OK to Complain! If someone feels these rights and principles haven’t been upheld during treatment in the public mental health system, they can make a complaint directly to the service itself or to the MHCC. Their complaint might even lead to service improvements or changes for themselves and others who rely on the system.